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Court of Criminal Appeal 16 December 2005

RE v R

[2005] NSWCCA 429

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE OFFENCES OF ROBBING OF SECURITY GUARD

Citation: RE v R [2005] NSWCCA 429
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2005
Judge(s): McClellan CJ at CL, Studdert J, James J

Background

The applicant was one of several offenders who broke into a warehouse in Alexandria on the night of 6-7 October 2003, stealing computer equipment and perfume. A security guard named Caldwell, who was patrolling the wider complex, discovered the operation and was detained, robbed of two mobile phones, and assaulted by co-offenders. The applicant was not physically present during the assault and robbery, but was liable for those offences through the principle of joint criminal enterprise.

The applicant was arrested near the getaway vehicle after a police chase. His co-offenders fled on foot and were not immediately caught. He subsequently pleaded guilty to all three charges and provided substantial assistance to authorities in the prosecution of his co-offenders.

In the District Court, Judge Solomon sentenced the applicant to a total sentence of five years and six months with a non-parole period of two years and nine months for the first offence (aggravated break, enter and steal), plus fixed terms of two years for each of the other two offences, all running concurrently. The applicant sought leave to appeal on the grounds that the sentencing judge used an excessive starting point and failed to give adequate credit for his assistance and guilty pleas.

  • Whether the sentencing judge adopted an excessive notional starting point before applying discounts for the plea of guilty and offender assistance
  • Whether the combined discount applied for guilty plea and assistance was adequate
  • Whether the resulting sentences were manifestly excessive
  • Whether the sentences for the other two offences (detaining with intent to obtain an advantage, and robbery) should also be disturbed

Decision

James J, with whom Studdert J agreed, found that Judge Solomon's apparent starting point of eleven years for the first offence was excessive. Given the applicant's limited role in the planning, his absence from the assault and robbery of Mr Caldwell, and the fact that the offences were masterminded by the corrupt security guard Jadran, a notional starting point of nine years was more appropriate.

The Court accepted that a combined discount of 50 per cent for the guilty plea and assistance was warranted. This discount was applied to the revised nine-year starting point, producing a total sentence of four and a half years. Within that discount, approximately one quarter was attributed to future assistance. Special circumstances were found, justifying an adjustment to the ratio of non-parole period to balance of term.

McClellan CJ at CL agreed that the eleven-year starting point was excessive. His Honour separately flagged that a non-parole period of two years and three months was at the lowest end of the available range, though he concluded it was not unreasonably disproportionate to the nature and circumstances of the offence when the applicant's plea and cooperation were taken into account, as required under s 23(3) of the Crimes (Sentencing Procedure) Act 1999.

The appeal against the sentences for the two remaining offences was dismissed. The Court confirmed those sentences, which had already run concurrently with the non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed against the sentence for the first offence (aggravated breaking, entering and stealing)
  • Sentence for the first offence quashed and replaced with a non-parole period of two years and three months commencing 7 October 2003 and expiring 6 January 2006, with a balance of term of two years and three months commencing 7 January 2006 and expiring 6 April 2008
  • Sentences for the other two offences confirmed
  • Earliest eligible parole date: 6 January 2006

Key Takeaways

  • A combined discount exceeding 50 per cent for a guilty plea and offender assistance may be appropriate in some cases, but the Court of Criminal Appeal signalled this would be unusual and that care must be taken to avoid a sentence unreasonably disproportionate to the offence under s 23(3) of the Crimes (Sentencing Procedure) Act 1999.
  • Where a sentencing judge adopts an inflated starting point, the resulting sentence can be manifestly excessive even if the percentage discount applied appears appropriate on its face.
  • An offender's limited role in planning, physical absence during the more serious conduct of co-offenders, and provision of substantial assistance to authorities are all relevant mitigating factors that inform the sentencing exercise.
  • Liability through joint criminal enterprise does not prevent a court from treating an offender's actual personal conduct as a significant mitigating consideration at the sentencing stage.
  • Confirming the lower court's sentences for the lesser two offences, the Court of Criminal Appeal confined its intervention to the first offence, where the error in the starting point was established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Gallagher (1991) 23 NSWLR 220
- R v M [2005] NSWCCA 224
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Waqa (No 2) [2005] NSWCCA 33